Commissioner Appeal Decision

Phone: 404-656-5514 200 Piedmont Avenue SE Suite 1804 West Tower Atlanta, Georgia 30334-9010 Fax: 404-656-6279 www.doas.ga.gov

Brian P. Kemp Governor

Rebecca N. Sullivan Commissioner

November 23, 2022

Via Electronic Mail

James W. Cobb, Esq.

Caplan Cobb, LLC 75 Fourteenth Street, N.E.

Atlanta, Georgia 30309

Re: Request for Formal Review of Deputy Commissioner’s Decision Regarding Bid Protest by GEO Reentry

Services, LLC (Solicitation No. GDC 46700-GDC0000992)

Dear Mr. Cobb, This letter is in response to GEO Reentry Services’ (“GEO”) request for formal review of the decision of Deputy Commissioner Jim Barnaby regarding the Notice of Intent to Award (“NOIA”) issued in connection with solicitation number 46700-GDC0000992. After careful review of the written submissions and evidence, and upon consideration of the arguments of counsel at the hearing on October 7, 2022, GEO’s appeal is hereby denied.

I. RFP and Procedural History

On January 27, 2022, the Georgia Department of Administrative Services State Purchasing Division (“SPD”) issued a request for proposals (“RFP”) on behalf of the Georgia Department of Corrections (“GDC”) for a residential substance abuse treatment (“RSAT”) program. The RSAT is a nine-month, highly structured residential substance abuse treatment program that targets offenders nearing release, probationers sentenced by the courts, or GDC-referred offenders who have a need for intensive substance abuse programming.1

The RFP was scored on a total of a possible 1000 points, with 700 possible points awarded based on a supplier’s technical proposal and a total of 300 points based on the cost proposal. 2 The responsive and responsible supplier receiving the highest total combined score is selected for award.3 Three suppliers responded to the solicitation, including Gateway Foundation, Inc. (“Gateway”) and GEO. Gateway received the highest number of total points (754.62) and GEO received the second highest number of total points (748.13).

The NOIA was issued to Gateway as the apparent successful offeror on June 14, 2022. After several rounds of requests for records, GEO filed its original protest on June 24, 2022, and an amended protest on July 8, 2022.

The Deputy Commissioner denied GEO’s protest by written decision on September 6, 2022.

1 RFP § 1.1.

2 RFP § 6.4.

3 RFP § 6.7.

Protest Decision Solicitation No. GDC0000992

Phone: 404-656-5514 200 Piedmont Avenue SE Suite 1804 West Tower Atlanta, Georgia 30334-9010 Fax: 404-656-6279

GEO submitted a request for formal review of the Deputy Commissioner’s decision on September 9, 2022, and Gateway responded on September 19, 2022.4 GEO submitted a reply brief on September 26, 2022. On October 7, 2022, I held a hearing in which counsel for GEO and Gateway presented arguments on behalf of their respective clients. In deciding this appeal, I have considered all briefings, exhibits, and arguments of counsel, along with the record as a whole.

II. Enumerations of Error

GEO identified eight alleged enumerations of error in its initial protest but has narrowed its challenge to three specific alleged errors in its request for review.5 First, GEO contends that it was reversible error to conduct anything more than a single validation meeting. Second, GEO asserts that alleged inconsistencies between the five-year estimated cost of the contract identified in the NOIA and one-year estimated cost that was actually evaluated requires a reversal of the NOIA. Third, and finally, GEO contends that certain technical scoring decisions of the evaluation committee members contained material errors that require reversal.

In addressing these enumerations of error, I have applied the principles set forth in law, including but not limited to, Section 6.5 of the GPM. In particular, I note that the standard of review of the evaluation of proposals is one of deference to any reasonable judgment of the evaluation team and that a protesting party’s simple disagreement with the evaluation team provides no basis for reversing the evaluation team’s allocation of points.

A. The Evaluation Team Did Not Err in Validating Scores.

GEO’s first enumeration of error is that during step 4 of the evaluation process, the evaluation committee deviated from the GPM by holding a second meeting to validate the technical scores. I disagree with GEO’s interpretation and characterization of the technical evaluation process as it is set forth in the GPM.

Section 5.6.3.2.1 of the GPM provides a “general overview of the technical evaluation process.” Under that section, members of the evaluation team independently score each supplier’s technical proposal, which scores are then submitted to the issuing officer. After the issuing officer assembles the evaluation documents, the scores must be validated. During the validation process, the evaluation team members meet to discuss the results of the independent scoring and, as a result of the discussion, an evaluation team member “may modify his/her scoring.”6 This is exactly what occurred during this solicitation.

The independent unvalidated technical scores resulted in the highest score to Gateway (464.38), the second highest technical score to GEO (439.38), and the third highest technical score to Spectrum Health Systems, Inc.

(400.63).7 Based on those initial scores, combined with the cost scores, Gateway would have received the

4 See generally Georgia Procurement Manual (“GPM”) § 6.5.11.

5 Although GEO’s written request for formal review identified four enumerations of error, GEO combined the third and fourth enumerations of error, which both alleged technical scoring errors, during the hearing. I have reviewed all of GEO’s enumerations related to alleged technical scoring errors.

6 See generally GPM § 5.6.3.2.1.

7 Spectrum Health Systems, Inc. is the incumbent provider, but has not filed a protest of the NOIA.

Phone: 404-656-5514 200 Piedmont Avenue SE Suite 1804 West Tower Atlanta, Georgia 30334-9010 Fax: 404-656-6279 www.doas.ga.gov highest total combined score (754.62) and GEO with the second highest score (739.38). Obviously, if the award was issued based upon those initial unvalidated scores, then Gateway would have been awarded the contract.

However, as required by the GPM, the evaluation committee subsequently “covene[d] to discuss the results of the independent scoring” and issue validated scores.8

Based upon that first validation meeting, Gateway’s technical score was reduced by ten points (to 455.63) while GEO’s technical score was increased by seven points (to 446.25), which resulted in GEO receiving the highest combined score by less than one point (746.25 to 745.87 for Gateway). As noted in the evaluation and selection report executive summary document, the Issuing Officer and GDC agency procurement officer reviewed the master evaluation document from the first validation meeting, and determined that it was necessary to reconvene the evaluation committee to ensure the comments adequately supported ratings and that the evaluation criteria were consistently applied by each evaluator.9 Subsequently, the evaluation committee issued its final validated technical scores and awarded Gateway its original score (of 464.38) and awarded GEO a revised score of 448.13, an increase of nearly nine points from the initial score. As a result of this final validation, Gateway received the highest validated, combined scores (754.62 to 748.13).

GEO’s general complaint is not that there was a validation meeting, but that the validation process continued beyond a single meeting.10 GEO references Table 5.6 to support its position that the validation of the technical scores was improper, citing Step 3 which provides that an issuing officer should schedule “a validation meeting” after the issuing officer has assembled all evaluation documents from the evaluation committee. As an initial matter, this chart is exactly what it is titled, “a general overview” of the technical evaluation process.

Nothing in the GPM prescribes the amount of time which must be spent in validation nor prevents the issuing officer or evaluation team from revisiting initial discussions or engaging in multiple meetings. Indeed, the GPM contemplates an iterative process, indicating that the evaluation committee should engage in “discussions,” which, at the very least, implies some back-and-forth to ensure a fair and equitable evaluation.

Additionally, were I to conclude that the continued validation discussions actually constituted a deviation from the GPM, which I do not conclude, I would find such a deviation to be necessary and immaterial and did not confer a competitive advantage to Gateway. The purpose of the validation process is to ensure that the committee members are able to evaluate the responses fairly and accurately. There would be greater harm in arbitrarily stopping those discussions than allowing for the process to take place beyond a single validation meeting.

Accordingly, I find that GEO’s first enumeration of error is without merit.

B. NOIA’s “Estimated Amount” is Not a Basis for Reversal.

GEO’s second enumeration of error asserts that the Deputy Commissioner erred in ignoring “the prejudice GEO suffered as a result of the significant discrepancy between Gateway’s cost proposal . . . and the NOIA’s

8 GPM § 5.6.3.2.1.

9 See Evaluation and Selection Report – Executive Summary Residential Substance Abuse Treatment (RSAT) Program Request for Proposal – GDC000092 at 4, attached as Exhibit D to Request for Formal Review.

10 Request for Formal Review at 4-9.

Phone: 404-656-5514 200 Piedmont Avenue SE Suite 1804 West Tower Atlanta, Georgia 30334-9010 Fax: 404-656-6279 estimated contract amount.”11 I agree with the Deputy Commissioner that this alleged “discrepancy” is explainable and moreover, irrelevant to the contract award.

GEO contends that the estimated contract amount identified on the NOIA was four million dollars more than the cost estimate provided by Gateway, and that if this additional four million dollars had been used in the cost analysis, Gateway’s final score would have been far lower than GEO’s.12 That contention, however, misstates the purpose of the NOIA cost estimate, which is just that – an estimate, and ignores the fact that the RFP clearly identified the cost elements that would be analyzed and scored.

As a preliminary issue, it is important to highlight that the contract is not a fixed-cost contract, but is, instead, an open contract that varies year-to-year based on the number of counselling hours worked from both certified and non-certified staff. As the statement of work makes clear, “[s]cheduling for the RSAT Program shall be flexible enough to accommodate additional programming, vocational training, mental health, and any other programming deemed necessary to help reduce recidivism.”13 The RFP, accordingly, was designed to anticipate some unknowns as to costs and expressly permitted the bidders to assume a “minimum of [f]orty percent (40%) of the counselor staff at each program facility” be licensed as licensed professional counselors.14 As such, the cost worksheet, to which there were no pre-award protests, allowed suppliers to include a reduced hourly rate for the non-certified staff at various positions. For evaluation purposes, each rate was weighted appropriately based off the certification requirements of the contract as specified in the instructions tab of the Cost Worksheet (Attachment F to the RFP). In contrast to the cost worksheet, which permitted bidders to assume 40% of staff were fully credentialed, the NOIA estimated cost assumed a greatest budgetary impact scenario, i.e., one in which GDC exercised all four of its one-year optional renewals and assumed that all counseling staff was fully licensed (and requiring a higher hourly rate). In other words, for purposes of calculating the “estimated amount” on the NOIA, the potential cost was calculated based upon a maximum staff cost assuming every staff member received the higher hourly rate of a certified staff. No supplier was evaluated based on the assumptions contained in the NOIA estimate and doing so would have been improper given the fact that the RFP only required a staffing of 40% with licensed certification. 15

As the Deputy Commissioner noted, it may have been helpful to explain the NOIA cost estimate more clearly (and the reasons behind it) to avoid the potential for confusion. The maximum staff cost was indicated in the NOIA out of an abundance of caution, to show the highest cost assumptions for budgetary purposes-specifically: 1) If Gateway were to use more than forty percent of certified staff to fulfil the contract; and 2) all four renewals are ultimately exercised. The actual amount will vary year to year based upon the makeup of certified and noncertified staff and hours actually worked. The contract was awarded according to the factors

11 Request for Formal Review at 9.

12 Request for Formal Review at 9.

13 RFP, Attachment B at 1.

14 RFP, Attachment B at 23.

15 At the hearing and in its formal request for review, GEO argued that there would have been no higher hourly rate in the event GEO was awarded the contract because its cost estimates assumed the same hourly rate for “all of its staff, both certified and non-certified.” Request for Formal Review at 11. An argument that cost should be evaluated differently in a manner that is in conflict with the terms of the RFP, which permitted the use of up to 60% noncertified staff, is not a legitimate basis for reversal or cancellation of the NOIA.

Phone: 404-656-5514 200 Piedmont Avenue SE Suite 1804 West Tower Atlanta, Georgia 30334-9010 Fax: 404-656-6279 in the cost worksheet - it was not awarded based on the estimated amount of the contract in the NOIA.

Accordingly, this argument is without merit.

C. The Deputy Commissioner Properly Considered and Decided GEO’s technical objections.

GEO’s final enumeration of error relates to the technical scoring of the evaluation committee. As the Deputy Commissioner correctly noted, each alleged technical problem challenges or disputes the evaluation team’s analysis of technical scores.16 Importantly, however, the GPM and relevant law prohibit me from substituting my opinion or judgment for that of the evaluation team. Put simply, GEO’s “disagreement with the evaluation team provides no basis for reversing the evaluation team’s allocation of points.”17 Given those principles, I find no basis for reversing the technical scores as further discussed below.

1. The evaluation committee properly considered the data-collection system.

GEO’s first technical-related argument is that the evaluation committee improperly faulted GEO for its reliance on the “SCRIBE” data entry system currently used by GDC. Specifically, GEO contends (incorrectly) that the RFP “suggested – and in some instances, required – that suppliers use SCRIBE.” Contrary to GEO’s argument, however, the RFP invited suppliers to propose alternatives to SCRIBE and certainly did not indicate a preference for its use.

The principal mandatory scored question at issue (i.e., MS 17) contains the following instruction:

Describe the proposed formal data collection system that details supplier’s approach to data collection and documentation. This system shall include collection tools, data, definitions, metrics, and other information needed to prepare required reports. If the Supplier’s proposed solution includes the use of any software or electronic data systems, this response must include a detailed description of how these systems will be secured and what metric will be used for evaluation, pen testing, and maintenance.18

While any supplier’s data collection system was required to interact with GDC’s SCRIBE system, the RFP invited other (and potentially better) options. The evaluation committee generally preferred Gateway’s proposed solution (and unique data collection system) to GEO’s exclusive reliance on SCRIBE. GEO criticizes one member of the evaluation committee’s determination that SCRIBE “may limit the data that will be collected [by GEO],” and asserts that its proposal “gave a number of examples and descriptions of other types of reports and forms it would generate and provide to GDC.” The standard for reviewing the evaluation of proposals is one of deference to any reasonable judgment of the evaluation team. A protesting party’s simple disagreement with the evaluation team provides no basis

16 Amended Protest at 10-15.

17 GPM § 6.5.

18 RFP, Attachment D.

Phone: 404-656-5514 200 Piedmont Avenue SE Suite 1804 West Tower Atlanta, Georgia 30334-9010 Fax: 404-656-6279 www.doas.ga.gov for reversing the evaluation team’s allocation of points. The evaluator scored GEO as “Adequate”, which means that GEO met all requirements of the solicitation. GEO has failed to demonstrate that the evaluator’s score of adequate was unreasonable. Although GEO disagrees with a comment provided by the evaluator, indicating the evaluator’s opinion that the use of Scribe “may” limit the data that will be collected by GEO, a protesting party’s simple disagreement with the evaluation team provides no basis for reversing the evaluation team’s allocation of points.

Finally, GEO argues that it “had no way of knowing that the evaluation committee would score the use of a supplier’s data-collection system higher than it would score the use of SCRIBE.” While I disagree with GEO’s argument that the RFP suggested a preference for SCRIBE, to the extent that GEO was confused or misunderstood the issue, it had an opportunity to submit clarifying questions. GEO’s misunderstanding about requirements is not a valid basis for reversal.

2. The remaining technical objections simply dispute evaluator’s determination and do not serve as a basis for reversal.

GEO asserts that the Deputy Commissioner erred in “summarily reject[ing]” GEO’s arguments about the remaining technical scores, maintaining its contentions that the evaluation committee erred by imposing requirements on GEO that were not included in the RFP, by faulting GEO for failing to include information in its proposal that GEO asserts were in fact included, and by scoring Gateway and GEO inconsistently over the same information. I disagree with GEO’s characterization of the Deputy Commissioner’s decision and note that he carefully reviewed GEO’s technical arguments. But putting that aside, I agree with the Deputy Commissioner’s ultimate conclusion that all of GEO’s arguments do not surmount the high standard of deference to judgements of the evaluation committee established in Section 6.5 of the GPM “Step 4- Supplier Participates in Protest Process”.

For example, GEO asserts that the evaluators’ scores of its MS21 response were erroneous, contending that the evaluators did not identify information GEO had in its response or faulted GEO for not providing information that was not called for by the question.

MS21 provided as follows:

Suppliers Staffing/Credentialing Experience Instructions: Describe Supplier’s success meeting staffing and credentialing requirements of previous or current RSAT Services contracts. If the supplier has been unable to meet any staffing and certifications requirements of any currently held contracts within the last 3 years, the supplier must include that information within this response and explain the reasons for the failure to meet requirements and the steps being taken to resolve the failure.

GEO received three initial scores of adequate and one initial score of good, and after validation, all evaluators scored GEO as “adequate”, meaning that in the evaluator’s opinion, GEO adequately met the minimum

Phone: 404-656-5514 200 Piedmont Avenue SE Suite 1804 West Tower Atlanta, Georgia 30334-9010 Fax: 404-656-6279 requirements, specification, or provision of the specific item, and is generally capable of meeting the state’s needs for specific criteria.19

GEO points to comments from one evaluator that GEO “does not disclose staffing success or failure”, asserting that this comment demonstrated that the evaluator overlooked responsive information in GEO’s proposal that stated that its “program staff in the accredited and licensed programs listed in Table 15 have been able to obtain and maintain credentials for the duration of the service agreements for each program listed.” The evaluator recognized GEO’s response relating to certification, stating “Response relies on CARF”. While GEO may have demonstrated success in meeting credentialing requirements, GEO’s response did not address staffing success or failure beyond credentialing, such as the supplier’s ability to maintain staffing numbers, which was a separate aspect of the question. This may be one reason why GEO was not awarded a rating above “adequate” by the evaluator.

GEO asserts that another evaluator “docked” GEO for failing to “id [sic] any time when unable to meet the need,” arguing that the RFP does not require the supplier to include this information unless “the supplier has been unable to meet any staffing and certification requirements of any currently held contracts within the last 3 years.” With regards to this question, all evaluators determined that GEO adequately met the minimum requirements, specification, or provision of the specific item, and is generally capable of meeting the state’s needs for specific criteria, ultimately assigning GEO a rating of adequate. In this instance, the comments specified by GEO appear to be initial thoughts by the evaluators prior to the validation meeting, and do not appear to have impacted the associated rating because GEO received a rating indicating that it had met all requirements, rather than a negative rating of “Marginal” or “Poor” indicating a failure to address one or more major considerations as GEO asserts the comments state.

GEO then proceeds to compare its response to that of Gateway, contending that the evaluators arbitrarily scored the proposals, disregarding GEO’s reference back to Section 4.0 of its proposal, which was highly rated with regards to another mandatory scored question, MS4. Gateway received validated scores of “Good” from three evaluators and “Excellent” from another evaluator. In the evaluator comments, they reference that Gateway proposes a 3-tier counselor position based on certification and education level and note that Gateway’s elevated hiring ratios, professional development, leadership, and staff recovery personnel are above expectations. GEO points to comments from two evaluators that scored Gateway as “Good” indicating that their proposal merits a similar rating because it contains the components referenced in comments -specifically a comparable tracking system that would identify staff that had credentials that needed to recertify, and that GEO has displayed opportunities for the credentialing of staff. Although GEO contends that its response relating to credentialing was similar enough to that of Gateway to mandate an identical rating, upon review, it appears the responses differ in material ways. For example, GEO’s response calls for a different manner in tracking credentialing and expiration timelines, utilizing an Employee Credentialing Anniversary spreadsheet to document certification and expiration date, indicating that this information is also tracked in a weekly, quarterly, monthly/annual report. GEO indicates that on a monthly basis its management team meets with GEO Program Directors to review the credentialing status and training needs of treatment staff. Gateway’s response involves tracking utilizing structured electronic personnel management systems (Utilipro and SAP) to record each Counselor’s current credential status, including prompts to both the

19 See Supplier Technical Evaluation Form Instructions.

Phone: 404-656-5514 200 Piedmont Avenue SE Suite 1804 West Tower Atlanta, Georgia 30334-9010 Fax: 404-656-6279

Counselor and the Program Director when a Counselor’s credential is scheduled to expire at 6- and 3-month intervals prior to credential expiration with auto-generated e-mail notifications until the credential is issued or renewed and entered into the system. As the two responses contain material differences in the approaches by each of the suppliers (for example, one involves a more manual approach involving a spreadsheet and the other involving records being maintained as a part of an integrated HR system that directly contacts both the manager and the counselor), it is within the discretion of the evaluation committee to attribute different ratings to those responses based upon their individual judgement of the merits of each approach.

The standard of reviewing the evaluation of proposals is one of deference to any reasonable judgment of the evaluation team, and while GEO disagrees with the evaluation team’s ratings, in each of the instances described above, GEO has failed to meet its burden of demonstrating that the evaluation was unreasonable.

GEO also asserts that the evaluation committee erred by imposing requirements on GEO that were not included in the RFP, citing the criteria contained in the Residential Substance Abuse Treatment Evaluation Tool, as well as comments that accompanied evaluator ratings. Mandatory Scored questions are generally broad and qualitative. The purpose of the scoring rubric was to provide guidance or level-setting, which often happens through discussion during the kick-off meeting, and the document explicitly provided that each evaluator was to use their own judgment when scoring. Mandatory scored questions are evaluated both objectively and subjectively, based on the substance of the offeror’s narrative response. The factors in the rubric and evaluators’ comments do not represent new requirements, but rather identify aspects that exceed the state’s requirements or related considerations that may not be adequately addressed. For example, GEO suggests that another evaluator incorrectly reduced GEO’s score in response to mandatory scored question 7 because GEO did “not discuss desire for correctional experience or interaction with facility.” According to GEO, the evaluator should not have given a deduction for GEO’s failure to provide information about its staff’s experience working in a correctional facility. As the entire contract is based upon providing services to state prisons and the unique working environment of dealing with inmates in a correctional setting, it would not be unreasonable for an evaluator to provide a higher rating for a response that demonstrates experience in this area.

As the Deputy Commissioner correctly noted, the remainder of GEO’s technical objections, while considered, fail for similar reasons.

III. Conclusion

For all the reasons set forth above, I find GEO’s protest has failed to meet the standard necessary to reverse the decision of the Deputy Commissioner. Therefore, the appeal is denied.

Sincerely, Rebecca N. Sullivan Commissioner